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A federal order requiring vaccination or weekly testing for workers in large companies also applies to state and local government employees in 26 states. But it’s under judicial review.
Officials in 26 states are awaiting word from the federal courts about whether they will have to meet a mandate to have government workers vaccinated against Covid-19 or tested weekly by a Jan. 4 deadline set by the Biden administration.
If that happens, a lot of questions remain about how public sector organizations will meet the requirement.
On Nov. 4, the federal Occupational Safety and Health Administration issued an order requiring employers with more than 100 workers to implement a vaccination mandate for their employees or institute a policy to allow workers to choose between getting vaccinated and submitting to weekly testing. The directive applies to employers with 100 or more workers that are subject to the 1970 Occupational Safety and Health Act.
This includes state, county and municipal workers in the 26 states in which OSHA has put its stamp of approval on independent plans for worker safety. The other 24 states, which are under the direct authority of OSHA regulation, are not required to include state and local government employees in their worker protection plans, and therefore are not subject to the mandate.
A day after OSHA issued its order, a federal appeals court issued a stay on its implementation. The stay was extended on Nov. 12.
Now, while the challenge to the order works its way through the legal system, public sector workers and managers in the affected states are trying to figure out how the mandate will be met if it survives judicial review. Michigan is one such state grappling with the specifics about what implementing and enforcing the order might entail.
“Our members, by and large, have seen that it is not exactly a vaccine mandate,” Peter Spadafore, deputy executive director for external relations at the Michigan Association of Superintendents and Administrators, recently told the Associated Press. “So they’re looking to what the testing protocols might look like for employees that opt out and things like that. But we know at the association that the science points us toward vaccination and testing and masking being some of the most effective tools to prevent the spread.”
According to the National Association of Counties, local governments are not required under the order to cover the costs of testing for employees who choose not to get vaccinated. But they may have to do so under collective bargaining agreements in place. The OSHA order mandates that employees who choose to get the vaccine must be allowed up to four hours of paid leave for each shot.
Employees do not have to get vaccinated or tested if they work outdoors, don’t come into contact with others while doing their jobs, or work exclusively from home. Some workers could be exempted from the policy for medical or religious reasons.
Each violation of the mandate could result in an employer being fined more than $13,000. The Biden administration is seeking to raise the cap on total fines from $136,000 to $700,000.
The National Council of State Legislatures notes that OSHA has a limited history of using the “emergency temporary standard” authority it is relying on to implement the vaccination-or-testing policy. On several occasions in the past, courts have struck down the agency’s efforts to use the authority.
The Biden administration announced that 90% of federal employees have been vaccinated as of Monday, the deadline day for them to do so under an executive order by the president. That leaves only 175,000 out of more than 3 million employees out of compliance with the order.